WHITE PAPER: Restricting Access to Firearms by Persons With Mental Health Commitments in Washington State. Rob McKenna Attorney General

WHITE PAPER: Restricting Access to Firearms by Persons With Mental Health Commitments in Washington State Rob McKenna Attorney General December 13, 2007

FIREARMS AND MENTAL HEALTH WORKGROUP MEMBERS Eric Nelson, Assistant Attorney General, Social and Health Services Division (chair) Sarah Coats, Assistant Attorney General, Social and Health Services Division Toni Hood, Assistant Attorney General, Licensing and Administrative Law Division Shannon Inglis, Assistant Attorney General, Criminal Justice Division Chris Johnson, AGO Policy Director, Administrative Division Lana Weinmann, Assistant Attorney General, Criminal Justice Division.

TABLE OF CONTENTS I. INTRODUCTION...1 A. A Failed Background Check...1 B. The Washington Firearms and Mental Health Workgroup...2 II. THE LEGAL FRAMEWORK FOR CIVIL COMMITMENT AND FIREARM RESTRICTIONS...3 A. Civil Commitment in Washington State....3 B. Washington Is Increasing Its Use of Diversion Mental Health Courts....4 C. Washington State Firearm Restrictions Based on Mental Health Commitments....5 D. Federal Law Prohibits Persons With Serious Mental Health Histories From Possessing Firearms...7 E. Comparing State and Federal Law...8 1. Under Washington law, 14-day commitment orders are not prohibitive....10 2. Restoration of rights under state and federal law...10 3. The question of federal preemption...11 III. WASHINGTON S BACKGROUND CHECK SYSTEM FOR FIREARMS...12 A. Courts Should Submit Records of Ineligibility to DOL on a More Complete and Consistent Basis....13 B. One Pattern Form for Firearms Ineligibility Should Apply to all Mental Health Cases...15 C. The Background Check System for Pistol Transfers and Concealed Pistol Licenses is Fragmented...16 D. Law Enforcement Needs Better Access to Mental Health Records....17 E. Washington Should Develop an Effective Surrender and Forfeiture Program for Mental Health Cases...18 F. Instant Background Checks Should be Available for Gun Shows in Washington....19 G. Existing Background Check Requirements Should be Enforced at Pawn Shops...20 1

IV. THE FEDERAL BACKGROUND CHECK SYSTEM...20 A. The Federal NICS Database...21 B. DSHS Began Submitting Mental Health Records to NICS in 2004....23 C. Courts, Not DSHS, Should Submit Disqualifying Records to NICS....24 D. New Federal Legislation Would Require States to Automate Transmittals to NICS....27 V. CONCLUSION AND SUMMARY OF RECOMMENDATIONS...28 Appendix A: RECOMMENDATIONS...29 Administrative Changes...29 Legislative Changes...30 END NOTES...31 2

I. INTRODUCTION The April 16, 2007, killing of 32 persons by a mentally ill student at Virginia Tech focused national attention on federal and state restrictions on firearms purchases by persons with serious mental health histories. The Virginia Tech assailant, Seung Hui Cho, was able to purchase firearms from a dealer in Virginia because a previous court order requiring him to receive outpatient mental health treatment had not been entered in either state or federal databases. Under federal law, Cho should have been barred from buying or possessing a firearm because he had been adjudicated as a mental defective. Cho purchased the firearms despite Virginia s active participation in the National Instant Criminal Background Check System (NICS). 1 A similar incident occurred on May 20, 2007, in Moscow, Idaho, where an individual killed his wife, a law enforcement officer, a church sexton and himself. Three others, including two law enforcement officers, were wounded. The shooter had previously received courtordered mental health evaluations but was not involuntarily committed. Earlier that month, his case was continued on the condition that he obtain counseling and not possess firearms. 2 Other reports noted that it was illegal for him to possess firearms because he had been previously convicted of domestic battery. 3 Like Virginia, Washington is also a leader among the 23 states that participate in NICS. Washington began working with federal authorities in 2003 and made an initial submission of 47,000 names into the database. Washington is one of only four states that consistently submit records to NICS. Nonetheless, gaps exist in Washington s reporting. It remains possible that an individual, who is prohibited from possessing a firearm under federal law due to a mental health court order, may still purchase a firearm through a firearms dealer because state and federal background checks will not produce any record of court orders prohibiting the possession of firearms. A. A Failed Background Check. On April 14, 2007, just two days before the shootings at Virginia Tech, Seattle could have had its own massacre by an individual with a serious mental health history. In this case, the background check system failed, but quick police response helped to avert what could have been a massacre. At 2:30 p.m., Seattle Police received a report of a young male in the Central District wearing a camouflage sweater, blue jeans and a bulletproof vest. He was reported to be carrying a black handgun. According to the police report, a witness reported the suspect as pacing, yelling and talking to himself. Seattle Post-Intelligencer columnist Robert Jamieson was having coffee nearby at the time. One witness told him that the individual muttered bang bang. 4 The police report describes a neighbor fleeing inside her home and the suspect waiving a gun and shouting Where are you running to? The suspect remained in front of her home talking to himself. When officers arrived, they identified the suspect as 20-year old J.S. Instead of a handgun, J.S. had a black semi-automatic STG-2000-C rifle, with the butt of the rifle removed, tucked into his waistband. His waistband also held a clip with 22 rounds of 7.62 mm ammunition capable of piercing armor. White Paper on Firearms and Mental Health 1

Officers ran a state computer check on J.S. and determined that he was ineligible to possess firearms. The state Department of Licensing (DOL) firearms database simply says ineligible and does not provide police with more information. A follow-up call to King County Mental Health revealed that J.S. had several civil commitments, making him ineligible under both state and federal law to possess a firearm. The civil commitment order was faxed to the local precinct. J.S. was arrested and subsequently charged with unlawful possession of a firearm, a felony, and unlawful display of a weapon. In one respect, the system worked. J.S. had received an involuntary commitment as a minor to Fairfax Hospital in 2004 resulting in a 14-day inpatient order and a subsequent order for 180 days of less restrictive treatment. In 2006, J.S. was committed as an adult resulting in a 14- day inpatient order and a subsequent order for 90 days of less restrictive treatment. Although neither of the 14-day orders are disqualifying under state law, the long-term orders are disqualifying. These orders were forwarded to DOL for inclusion in its firearms database. Although the long-term orders were contained in DOL s database, the database was not checked when J.S. purchased his STG-2000-C rifle from a Seattle gun shop. In Washington, state background checks are performed on persons who apply to purchase handguns or obtain concealed pistol licenses. Long-gun purchases involve no state background checks. Rather, for long-gun purchases, the dealer must check the NICS, operated by the Federal Bureau of Investigation (FBI). According to investigators who reviewed the J.S. case, the dealer did a NICS check. J.S. s record, however, had not been submitted to the federal database, therefore his purchase of the rifle was allowed to proceed. Police later recovered another rifle from J.S. who had purchased the weapon from a Seattle pawn shop; this purchase had also been allowed to proceed. 5 J.S. s case was subsequently referred from Superior Court to the King County District Mental Health Court where he is actively case-managed by court staff and mental health treatment providers. The Seattle Police Department submitted his record to NICS. B. The Washington Firearms and Mental Health Workgroup. In May 2007, Attorney General Rob McKenna convened a workgroup of AGO staff to perform a comprehensive survey of relevant state and federal laws and regulations focusing on mental health and gun ownership. 6 The workgroup was also charged with identifying laws that prohibit gun possession for reasons other than mental health. The workgroup was asked to describe how current state and federal laws and regulations are being administered. Finally, the workgroup was charged with identifying the following: (1) areas of potential legal conflict between state and federal law, (2) areas of impractical overlap or inefficiency, and (3) voids or loopholes that preclude fulfilling the intent of the respective laws. White Paper on Firearms and Mental Health 2

To accomplish these objectives, the workgroup has met to review state and federal law, discussed application of those laws with state agency clients (Washington State Patrol, Department of Licensing, and Department of Social and Health Services, Administrative Office of the Courts) and has consulted with Seattle Police Department, the Washington Association of Prosecuting Attorneys, and the Washington Association of Sheriffs and Police Chiefs, and other individuals. This paper: a. Provides an overview of both state and federal laws that prohibit firearm possession following entry of a mental health court order; b. Identifies key differences between state and federal law; c. Discusses the structure of state and federal background check systems; d. Makes findings and recommendations in regard to gaps and obstacles to fulfilling the purposes of those laws; and e. Provides options for both client state agencies and the Attorney General in regards to administrative improvements and legislative changes that may help advance public safety. II. THE LEGAL FRAMEWORK FOR CIVIL COMMITMENT AND FIREARM RESTRICTIONS. A. Civil Commitment in Washington State. Before reviewing how state and federal law bars individuals with civil commitments and other mental health findings from possessing firearms, a brief review of the state civil commitment structure may be helpful. Washington s Involuntary Treatment Act (ITA) imposes an initial detention and a series of progressively longer court-ordered periods of treatment culminating in 180-day commitments to state hospitals that can be successively ordered. Less restrictive placement in the community can be ordered anywhere in the chain of commitments, either as an alternative to inpatient treatment or as a condition of discharge. The system has the following features: Adults 72-hour detention by Designated Mental Health Professional (no judicial review). RCW 71.05.180. 14-day detention in a local community hospital or evaluation and treatment facility. RCW 71.05.240. 90-day detention (order usually obtained by counties prior to transfer to state hospital). Treatment generally occurs in a state hospital. RCW 71.05.280 and.320. White Paper on Firearms and Mental Health 3

Minors 90-day less restrictive order for community treatment. RCW 71.05.320 and.340. 180-day detention. Treatment is generally in a state hospital. RCW 71.05.320. 180-day less restrictive order for community treatment. RCW 71.05.320 and.340. 72-hour detention at evaluation and treatment facility (no judicial review). RCW 71.34.720. 14-day detention at local community hospital evaluation and treatment facility. RCW 71.34.730. 180-day detention at state hospital or other Children s Long Term Inpatient Program facility. RCW 71.34.750. 180-day less restrictive order for community treatment. RCW 71.34.770. Related to civil commitments are those cases where individuals are found incompetent to stand trial for misdemeanor and felony acts. RCW 10.77.090. In these cases, criminal charges may be dismissed and patients convert to 90-day (misdemeanor) or 180-day (felony) civil commitments under ch. 71.05 RCW, if the state proves the civil commitment criteria. Lastly, in addition to civil commitment, individuals charged with a crime may be found not guilty by reason of insanity (NGRI). RCW 10.77.030,.060-080. To establish such a defense, the person must show by a preponderance of the evidence that a mental disease or defect affected the person at the time of the offense, and that he or she was unable to perceive the nature and quality of the act with which he or she was charged, or was unable to tell right from wrong. RCW 9A.12.010. Persons making such a defense may be committed to a hospital for evaluation. RCW 10.77.060(1)(a). If the person is found NGRI, that person may be committed to a state hospital for mental health treatment for a period of time not to exceed the maximum sentence the person could have received for the crime. RCW 10.77.025. B. Washington Is Increasing Its Use of Diversion Mental Health Courts. Washington is increasing its use of diversion from the criminal system and inpatient commitment through the use of municipal and district mental health courts. RCW 2.28.180. Diversion can take several forms. First, when competency is at issue and the person has been evaluated and found not competent to stand trial, courts previously had discretion to refer the individual for either evaluation at a state hospital or evaluation by local mental health authorities for subsequent commitment under ch. 71.05. Former RCW 10.77.090(d). In the 2007 legislative session, the legislature emphasized more formal diversion procedures, to be codified in changes to ch. 10.77 RCW and ch. 71.05 RCW. Ch. 375, Laws of 2007 (ESSB 5533). These changes mean that fewer misdemeanor cases will result in the defendant being sent to a state hospital for civil commitment under ch. 71.05 RCW. Rather, individuals against whom charges have been dismissed, and who have performed acts not considered to be a serious offense, may be White Paper on Firearms and Mental Health 4

referred for a local mental health evaluation and are not necessarily remanded to the custody of DSHS. Ch. 375, Laws of 2007, Sec. 5. The second type of diversion is less formal and does not occur under ch. 10.77 RCW. Both the Seattle Municipal Court and the King County District Court operate mental health courts, as do courts in Clark and Thurston Counties. 7 In the Seattle Municipal Mental Health Court, an individual charged with a misdemeanor agrees to a continuance and eventual dismissal of charges in return for conditions of release or deferred sentence that involve voluntary mental health treatment. Social work and other wrap-around services are provided to enable individuals to succeed in the community. Table 1: Types of Mental Health Interventions as Applied to Adults and Minors. Mental health interventions. Adult. Minor. Voluntary inpatient or X X outpatient treatment. 72-hour evaluation (no X X judicial review). 14-day inpatient X X commitment. 90-day inpatient X commitment. 90-day less restrictive. X 180-day inpatient X X commitment. 180-day less restrictive. X X Not guilty by reason of X insanity. Incompetent to stand X X trial. Mental health court diversion. X C. Washington State Firearm Restrictions Based on Mental Health Commitments. Firearms are regulated under state law by Ch. 9.41 RCW (Firearms and Dangerous Weapons). The operative link between Washington s firearm restrictions and Washington s mental health commitment structure is found in RCW 9.41.040, which provides: A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person... has in his or her possession, or has in his or her control any firearm: (i) After having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any felony White Paper on Firearms and Mental Health 5

(ii) After having previously been involuntarily committed for mental health treatment under RCW 71.05.320, *71.34.090, chapter 10.77 RCW, or equivalent statutes of another jurisdiction, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047; RCW 9.41.040 (2)(a) (emphases added). Under this statute, possession of any type of firearm is prohibited if the individual has the following mental health findings: Not guilty by reason of insanity for a felony charge; Involuntary commitment for 90 or 180 days under the adult civil commitment statute (ch. 71.05 RCW); Involuntarily committed for 180 days under the minor civil commitment statute (ch. 71.34 RCW); 90 or 180-day less restrictive orders. RCW 71.05.240, Morris v. Blaker, 118 Wn.2d 133 (1992); or Not competent to stand trial under ch. 10.77 RCW. The civil commitment statute cross-references the firearm prohibition in several places. First, the civil commitment statute provides that if involuntary treatment is ordered beyond the 14-day period, the court shall provide the detained person with notice that the person will be barred from possession of firearms. RCW 71.05.240. Second, the civil commitment statute provides that detained individuals retain all rights not denied them under the statute, except as chapter 9.41 RCW may limit the right of a person to purchase or possess a firearm or to qualify for a concealed pistol license. RCW 71.05.360(1)(a). Lastly, the civil commitment statute contains an exception to the rule of strict confidentiality that permits law enforcement access to limited information for purposes of enforcing the prohibition on firearm possession. RCW 71.05.390(17). This exception was enacted by the legislature in 2005, as part of legislation that added not guilty by reason of insanity to the categories of mental health findings that prohibit firearm possession. Ch. 453, Laws of 2005 (ESHB 1687). (The minor civil commitment statute contains the same provision for release of limited information to law enforcement. RCW 71.34.340(16). It is, however, the only reference to firearms in ch. 71.34 RCW.) It is a class B felony to possess a firearm if the individual has been found not guilty by reason of insanity following charges of a serious offense. RCW 9.41.040(1)(b). Serious offenses include crimes of violence and 14 other felonies. RCW 9.41.010(12)(a)-(o). It is a class C felony to possess a firearm if the individual has been committed or found not guilty by reason of insanity under other listed statutes. RCW 9.41.040 (2)(b). The maximum sentences for Class B and Class C felonies are ten years and five years, respectively. RCW 9A.20.021(1)(b),(c). White Paper on Firearms and Mental Health 6

Under Washington law, certain mental health evaluations, commitments and court programs do not result in a firearms prohibition. Washington law places no firearm restrictions on adults or minors who have been detained for 72-hour evaluations or who have been subject to 14-day involuntary commitment orders. The lack of firearm restrictions for individuals detained for short-term evaluations and commitments can be frustrating and tragic. In 2000, a delusional man with a history of firing guns into the air shot and killed a Clallam County sheriff s deputy who responded to a call that the mentally ill man was outside yelling. The man had several 72-hour evaluations, but local mental health officials apparently never sought a court order for involuntary treatment. 8 Even under federal law, an evaluation period that lacks due process and judicial review, such as Washington s 72-hour evaluation period, will not result in a firearm prohibition. As discussed below, however, a key distinction between Washington law and federal law is that a courtordered 14-day detention will make an individual federally-ineligible to possess a firearm. In addition, there are no statutory firearm restrictions tied to participation in a growing number of diversion mental health courts discussed above. 9 See ESSB 5533, Sec. 5 (2007). One condition of participation is typically an agreement to possess no weapons. However, there are no state statutory restrictions that tie participation in mental health court to a prohibition on possessing firearms. Thus, the names of those who participate are not submitted to DOL. Federal restrictions may apply if there is a court finding that the person suffers from a mental illness or impaired functioning. Such a finding would be necessary for the person to be adjudicated as a mental defective under the Gun Control Act, and therefore federally ineligible to possess firearms. For example, the Seattle Municipal Court judgment and sentence standard form order contains no finding by the court that the individual suffers from a mental disorder or mental illness. One report by the federal Bureau of Justice Statistics noted, State and Federal authorities should have accurate and complete records on persons who fall within the purview of the Gun Control Act if they are processed though the mental health courts. 10 It is unclear what steps, if any, have been taken to accomplish reporting of these dispositions. D. Federal Law Prohibits Persons With Serious Mental Health Histories From Possessing Firearms. Like state law, federal law also prohibits certain persons from possessing firearms. Among the prohibited categories are persons with serious mental health histories. 11 It shall be unlawful for any person... who has been adjudicated as a mental defective or who has been committed to a mental institution;... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 18 U.S.C. 922(g)(4) (Gun Control Act of 1968) (emphasis added). In addition, federally licensed firearms dealers are prohibited from transferring firearms or ammunition to an individual who is barred from possessing a firearm. 18 U.S.C. 922(d). White Paper on Firearms and Mental Health 7

The terms adjudicated as a mental defective and committed to a mental institution are defined by federal rule: Adjudicated as a mental defective. (a) (b) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs. The term shall include-- (1) A finding of insanity by a court in a criminal case; and (2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b. 27 C.F.R. 478.11. Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution. 27 C.F.R. 478.11. The federal courts have developed a small body of case law that interprets whether or not an individual has been committed to a mental institution and is therefore subject to federal criminal prosecution for unlawful possession of a firearm. These decisions are fact-specific and tend to involve an examination of state civil commitment laws, as each are structured differently and involve judicial involvement at various stages. In general, the decisions reflect a requirement for due process in the civil commitment scheme, regardless of whether the commitment decision is made by a court, board or commission. Some courts have gone so far as to say that emergency detention without judicial review constitutes committed to a mental institution, however, that is a minority view. 12 E. Comparing State and Federal Law. Distinctions between state and federal law prohibiting firearm possession may appear puzzling at first because this area of federal law is generally more restrictive than state law. The Virginia Tech Review Panel noted ambiguity in Virginia law in regard to whether a person like Seung Hui Cho, found to be a danger to himself, but ordered to undergo outpatient rather than inpatient treatment, was barred from possessing a firearm. 13 There is no such ambiguity under White Paper on Firearms and Mental Health 8

federal law. An order of a Virginia special justice finding Cho a danger to himself meant that he had been adjudicated as a mental defective. 14 The panel noted: There does not seem to have been an appreciation in setting up this process that the federal mental health standards were different than those of the state or that the practice deprived the federal database of information it needed in order to make the system effective. 15 The Washington legislature has explicitly recognized differences in state and federal law. Washington pistol purchase application forms are required to have the following disclaimer: The application shall contain a warning substantially as follows: CAUTION: Although state and local laws do not differ, federal law and state law on the possession of firearms differ. If you are prohibited by federal law from possessing a firearm, you may be prosecuted in federal court. State permission to purchase a firearm is not a defense to a federal prosecution. RCW 9.41.090(5). See RCW 9.41.070(4) (similar language required for application for concealed pistol licenses). Based on the definitions in federal rules and federal court decisions, Washington State s 72-hour detention under RCW 71.05.180 is not considered committed to a mental institution because the decision is made solely by a Designated Mental Health Professional and there is no judicial review prior to emergency detention. Washington also has a provision for court-ordered non-emergency 72-hour detentions. RCW 71.05.150. These detentions are unlikely to be considered committed to a mental institution because the court orders such an evaluation based only on an ex parte showing by the Designated Mental Health Professional. There is no opportunity for due process until the 72-hour evaluation period expires and the individual appears in court pursuant to a petition for 14 days of involuntary treatment. State court orders for 14-day, 90-day and 180-day detention, as well as commitments for competency restoration under Ch. 10.77 RCW, would be considered committed to a mental institution. A person who admits himself/herself for voluntary mental health treatment is not considered committed to a mental institution. Less restrictive orders requiring a person to undergo community treatment and adhere to conditions, ordered in lieu of inpatient treatment would be considered adjudicated as a mental defective. This is akin to the order that Mr. Cho received in Virginia. The findings of incompetency to stand trial under Ch. 10.77 RCW and findings of not guilty by reason of insanity would also be considered adjudicated as a mental defective. White Paper on Firearms and Mental Health 9

1. Under Washington law, 14-day commitment orders are not prohibitive. The most significant distinction between state and federal laws is that 14-day commitments are not considered disqualifying under Washington law but such orders are disqualifying under federal law. 2. Restoration of rights under state and federal law. Another distinction between state and federal law is restoration of firearm rights. State law provides a process for restoration wherein a disqualified person may petition a superior court for restoration of firearm rights. RCW 9.41.047(3). DSHS has two WACs for restoration. 16 Washington statutes also recognize any federal restoration or relief from disabilities. RCW 9.41.070(3). The statutory provision for restoration is required by case law. The state Firearms Act previously had no provision for restoration of rights for persons involuntarily committed, however, it did allow restorations for persons convicted of crimes. The Washington State Supreme Court found this a violation of equal protection. Morris v. Blaker, 118 Wn.2d 133, 147-148 (1992). The court applied the same reasoning for cases under ch. 10.77 RCW (incompetent to stand trial and not guilty by reason of insanity). State v. Ruff, 122 Wn.2d 731 (1993). The question of federal relief from disabilities is more complex. Although federal law has a provision for relief from the prohibition, the federal disqualification is effectively permanent. Federal law provides that a person may seek relief from the U.S. Attorney General if a federal disability has been imposed. 18 U.S.C. 925(c). The Bureau of Alcohol Tobacco and Firearms (ATF) has authority to investigate requests for relief. 27 C.F.R. 478.144(c). But Congress has not funded ATF review of relief applications. Therefore, in practice, relief from federal firearm disabilities is not available. The U.S. Supreme Court has held that absence of ATF administrative review precludes an individual s right to subsequent judicial review of ATF s inaction. U.S. v. Bean, 537 U.S. 71 (2002). Federal authorities are clear that federal relief is not available. One federal guidance sheet states ONCE A PERSON IS PROHIBITED DUE TO THIS PROHIBITION, THEY WILL BE PROHIBITED FOR LIFE. 17 In a letter to state attorneys general following the Virginia Tech shootings, the ATF director noted that the firearms disability is permanent. 18 A bill in Congress may change the federal policy by proposing that restoration of state rights would remove the federal disqualification. White Paper on Firearms and Mental Health 10

Table 2 compares the major features of state and federal law. Mental health intervention, commitment or finding. State law firearms disqualification. RCW 9.41.040. Federal law firearms disqualification. 18 U.S.C. 922(g)(4). 72-hour evaluation. No. No. 14-day inpatient No. Yes. commitment. 90-day inpatient Yes. Yes. commitment. 90-day less restrictive. Yes. Yes. 180-day inpatient Yes. Yes. commitment. 180-day less restrictive. Yes. Yes. Voluntary inpatient or No. No. outpatient treatment. Not guilty by reason of Yes. Yes. insanity. Incompetent to stand Yes. Yes. trial. Mental health court diversion. No. Yes, if court order finds a mental illness. Restoration of firearm rights. Yes. No. Washington and federal firearm restrictions are reasonably well aligned. The major distinction is Washington s 14-day commitment period. The other distinction involves orders by Washington s diversion courts or mental health courts of lesser jurisdiction, which are not considered prohibitive under state law. Restoration provisions also differ, however as discussed below, this is an area where Congress may change federal law to require state restoration and federal recognition of state restorations. 3. The question of federal preemption. Congress did not preempt state law when it enacted the Gun Control Act. 18 U.S.C. 927. If Congress has not claimed exclusive jurisdiction over an area of regulation, state law in that area will only be preempted if it conflicts directly with federal law (conflict preemption). Conflict occurs when compliance with both federal and state law is impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. See Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Washington state and federal firearm laws are not in conflict because nothing in state law attempts to curtail federal efforts to restrict guns to individuals prohibited from possessing them under federal law. State law simply has an absence of prohibition for individuals with 14-day commitments. Such a person may lawfully possess a firearm under Washington law, but that possession would be unlawful under federal law. The two laws can operate independently. White Paper on Firearms and Mental Health 11

Recommendations: Washington s firearm statute should be amended to prohibit individuals who have been involuntarily committed for 14 days from possessing a firearm. This would align Washington law with federal law. Washington s firearm statute should be amended to prohibit individuals who participate in mental health court proceedings from possessing a firearm. While such a prohibition may discourage some persons from participating, those persons should not be considered candidates for participation if they are unwilling to forego their firearm rights. III. WASHINGTON S BACKGROUND CHECK SYSTEM FOR FIREARMS. It is one thing to statutorily restrict certain individuals from possessing firearms under state law. It is quite another task to develop a system that practically prevents them from obtaining firearms through a variety of lawful channels that may include firearms dealers, pawn shops or gun shows. Washington s firearms statute has additional provisions that assist state and local authorities in stopping guns from falling into the wrong hands. Issuance of concealed pistol licenses by local law enforcement subject to background checks (RCW 9.41.047); Regulation of dealer sales of pistols and a five-day wait period if the purchaser has no concealed pistol license (RCW 9.41.047); A waiver of confidentiality upon applying to purchase a pistol, and a directive to the Department of Social and Health Services, mental health institutions, and health care facilities to release information about an individual to determine eligibility to possess or be issued a concealed weapons license (RCW 9.41.094,.097); Authority for courts to order surrender and forfeiture of a firearm in the possession of a person who may not lawfully possess it (RCW 9.41.098 and 9.41.800); Regulation of state firearms dealers (RCW 9.41.100,.110); Good faith immunity for state and local governments or private agencies involved in the sale or transfer of firearms and the issuance of a concealed weapons license (RCW 9.41.0975); and It is important to recognize that state and local authorities do not regulate long-gun transfers or sales. Local law enforcement and DOL receive no information about persons who attempt or complete long-gun purchases. Dealers must conduct background checks with federal authorities before the transfer may proceed. White Paper on Firearms and Mental Health 12

Based on our review of Washington s firearm background check system, improvements should be made in the following areas: Courts should submit records of ineligibility to DOL on a more complete and consistent basis. Confidence in the firearm background check system could be improved with complete and consistent reporting by courts to the DOL firearms database. One pattern form for firearms ineligibility should apply to all mental health cases. Consistency and timeliness in reporting ineligibility to DOL s database could be achieved with the development and use of one pattern form that applies to all applicable mental health proceedings. The background check system for pistol transfers and concealed pistol licenses is fragmented. State background checks are performed by local law enforcement agencies that check multiple databases. This is time consuming and labor-intensive. Washington has no centralized check system. Law enforcement needs better access to mental health records. Officers on the street have no immediate access to records that provide information about whether a person is restricted from possessing a firearm due to mental health prohibitions, despite the fact that the legislature has granted law enforcement authority to access such information. Washington should develop a surrender and forfeiture program for mental health cases. Once a person is prohibited from possessing a firearm due to a mental health commitment, authorities should have an effective system to remove any firearms from their home. Washington should attempt to address the issue of background checks at gun shows and pawn shops. Policy makers should consider the development of instant background checks at guns shows, and ensure that pawnbrokers perform background checks and keep records of gun sales. A. Courts Should Submit Records of Ineligibility to DOL on a More Complete and Consistent Basis. Ch. 9.41 RCW dictates several key practices by courts that make mental health findings. A convicting or committing court shall notify the person, orally and in writing, that the person must immediately surrender any concealed pistol license and that the person may not possess a firearm unless his or her right to do so is restored by a court of record. For purposes of this section a convicting court includes a court in which a person has been found not guilty by reason of insanity. RCW 9.41.047(1). Further, courts must also forward a copy of the person s driver s license or identicard, or comparable information, to the DOL, along with the date of conviction or commitment. Id. White Paper on Firearms and Mental Health 13

Once DOL receives the Notice of Ineligibility to Possess a Firearm from the court, DOL checks the name of the individual and date of birth against its Firearms Database. If no record is found, DOL creates a record of ineligibility. If a record of a handgun transfer or concealed pistol license does exist, DOL notifies the law enforcement jurisdiction where the individual resides and informs them of the ineligibility due to mental commitment. 19 After law enforcement verifies the information, law enforcement is asked to remove the firearm or revoke a firearms license. Although DOL destroys paper notices sent by the courts within two months, it retains an electronic version of the record which is made available to law enforcement through the State Patrol ACCESS system for use in conducting background checks for handgun transfers and concealed pistol licenses. 20 The Notice of Ineligibility to Possess a Firearm is critical to the effectiveness of the state firearm background check system. If there is no notice to the individual during the court proceeding that he or she is barred from possessing a firearm, subsequent prosecution for unlawful possession of a firearm is unlikely to succeed. More importantly, if a notice of ineligibility is not sent by the court to the DOL for inclusion in its Firearms Database, law enforcement will not know whether or not the person currently possesses a firearm or whether a subsequent application for transfer of a pistol or concealed pistol license should be denied. Participants in this workgroup identified several areas that require improvement, principally in court practices. Following a civil commitment or other disqualifying court order, there is concern that court clerks do not routinely send Notices of Ineligibility to Possess a Firearm to the state DOL for inclusion in DOL s database. Failure to do so, or to do so timely, has undermined law enforcement s confidence in the accuracy and completeness of the DOL database. For example, a sample of 31 NGRI court records from a cross-section of counties was checked to determine inclusion in the DOL Firearm Database. Only eight (or about one-quarter of the cases) were received by DOL for inclusion in its Firearms Database. This small review suggests that court clerks are not routinely sending Notices of Ineligibility to Possess a Firearm to DOL as required by RCW 9.41.047(1). (The NGRI records may, however, appear as convictions in ACCESS, which is also run as part of a firearms background check.) The Virginia Tech Review Panel noted similar problems in Virginia, where court clerks in some jurisdictions do not send copies of court orders and a notice of ineligibility for inclusion in a state police database. 21 Court clerks have a high workload and may not be trained in the urgency of sending ineligibility to possess notices to DOL. DOL has conducted training for court clerks, however, these may not be frequent enough to influence practice in all jurisdictions. Finally, RCW 9.41.047 does not specify a time frame by which court clerks must send notices of ineligibility to possess a firearm to DOL. By contrast, the statute for domestic violence protection orders requires clerks to forward protection orders to law enforcement on or before the next judicial day and requires law enforcement to forthwith enter the order into a computerized database. RCW 26.50.100(1). White Paper on Firearms and Mental Health 14

Recommendations: Administrative Office of the Courts (AOC) and the Department of Licensing (DOL) should work together to verify the completeness of the DOL Firearms Database and fill any gaps in records held by DOL. DOL should consider additional cross-checks of records held by the Department of Social and Health Services (DSHS) under disclosures allowed for program evaluation. 22 A timeframe should be established in statute for sending the ineligibility notice from committing courts to DOL. B. One Pattern Form for Firearms Ineligibility Should Apply to all Mental Health Cases. There is no pattern court form for ineligibility to possess a firearm that applies to all applicable mental health proceedings. A pattern form for Notice of Ineligibility to Possess Firearm was developed in 2005 for not guilty by reason of insanity cases. 23 It states: Because you have been found not guilty by reason of insanity, effective immediately you may not own, use or possess any firearm unless your right to do so is restored by a court of record. You are further notified that you must immediately surrender any concealed pistol license. The form is to be read to the defendant who signs and receives a copy. The form does not, however, contain elements required by RCW 9.41.047 that provides identifying information for DOL. Another pattern form exists for domestic violence cases advising the defendant that he or she is ineligible to possess a firearm and must surrender any firearm immediately. 24 This domestic violence form is detailed in its identifying information and would serve as the best template for a mental health ineligibility form. No such pattern forms have been developed for civil commitment cases or cases in which the defendant has been found incompetent to stand trial. The Pierce County Superior Court at Western State Hospital uses its own firearm form for civil commitments, which contains fields for name, aliases, date of birth, height, weight, eye color, race and sex. Related to the lack of pattern forms, the Superior Court Mental Proceedings Rules (MPRs) fail to reference the firearms prohibition. Although the MPRs set forth the required format of numerous pleadings, the MPRs do not require a use of a firearms ineligibility form. Recommendations: The Administrative Office of the Courts should develop one standardized Notice of Ineligibility to Possess Firearm form that can be used for all mental health cases. The pattern form should be modeled on the domestic violence form and have detailed fields that will assist DOL to enter identifying information. Necessary changes to court rules should also be made to require the use of the form by court clerks. White Paper on Firearms and Mental Health 15

Education and training should be provided to court clerks on using a pattern form and timely forwarding it to the DOL for inclusion in its Firearms Database. C. The Background Check System for Pistol Transfers and Concealed Pistol Licenses is Fragmented. Background checks for purchase of a pistol or application for a concealed pistol license begin with local law enforcement. Applications are received by law enforcement in person, by fax, or by mail, and law enforcement generally has five business days to perform the required background checks. The time may be extended to 30 days for an applicant whose record lacks certain dispositions, or up to 60 days for an applicant who is a new resident of Washington or lacks required identification. As noted above, law enforcement may check against many different databases. It is the dealer s responsibility to check NICS. RCW 9.41.090(2)(b). To initiate the NICS check, the purchaser must complete a Firearms Transaction Record (ATF form 4473) and the dealer will verify the purchaser s identity. The 4473 form asks the purchaser if they have ever been committed to a mental institution or been adjudicated as a mental defective. The Virginia Tech shooter answered no to these questions, although the Virginia panel noted that it is impossible to know whether he understood that the correct answer was yes. 25 In Washington, the responsibility to conduct state background checks lies with 291 local law enforcement agencies. Some jurisdictions may perform certain background checks while others may not. In addition, the process is time consuming and labor-intensive for law enforcement. Local law enforcement checks the applicant against multiple state and federal databases, including the Local Records Management System, WACIC/WASIS, Department of Social and Health Services, DOL, and the federal Automated Alien Query (AAQ) process for non-u.s. citizens. The firearms dealer is required to check NICS. This process is not completely automated. For example, RCW 9.41.090(2)(b) requires a sheriff or police chief to check the department of social and health services electronic data base and with other agencies or resources as appropriate, to determine whether applicants are ineligible under RCW 9.41.040 to possess a firearm. Law enforcement has no access to a DSHS electronic data base. Rather, law enforcement faxes an application to DSHS and DSHS staff manually checks against an electronic file that shows prior civil commitments. While DSHS records are considered accurate, the process is slow and labor intensive. According to DSHS, it performs about 5,000 firearm background checks annually and has no dedicated FTE for this function. Some requests even come from Oregon. The time-consuming nature of these background checks has created concern that the system causes default approvals. Under the statute, a dealer forwards a pistol transfer application to law enforcement for a background check. Law enforcement has five business days (or in some cases, longer) to process that application. RCW 9.41.090(1)(c). After five days elapses, however, law enforcement is only technically required to notify the dealer if approval has been denied. RCW 9.41.090(5). Therefore, it is possible that silence by law enforcement may be construed by the dealer as approval and the transfer will proceed even though no White Paper on Firearms and Mental Health 16

background check has been performed. DOL encourages law enforcement to notify dealers of both approvals and denials, but not all law enforcement agencies may follow this practice. DOL believes dealers would support such a requirement because any law enforcement approval would come with a federal ATF tracking number that will serve as documentation during ATF audits of dealers. Reliance on 291 sheriffs and police departments to conduct firearm purchase background checks is another concern. Washington s background check system is not centralized and therefore lacks accuracy and consistency. Based on data accumulated by NICS, Washington is one of eight states that act as a partial point of contact state for firearm purchases. 26 A partial point of contact means that state or local law enforcement conduct checks for handguns or handgun permits, while the FBI has responsibility for conducting (at dealer request) checks for long-guns. The responsibility is further decentralized in Washington, however, because even handgun checks are not conducted by a single state agency. In 10 states (including Washington) the responsibility is given to hundreds of local law enforcement agencies. 27 By contrast, some states require that dealers contact one state agency for state and federal background checks. For example, the Oregon State Police acts as the single contact in Oregon for dealers checking a purchaser s background against both state and federal NICS records. Oregon State Police receives information from various sources, including civil commitment records from the State Department of Mental Health. Checks are performed by telephone only and take three minutes. 28 Washington s local law enforcement agencies must check multiple databases, and the checks may be performed differently depending on jurisdiction. Recommendations: Washington s firearm statute should be amended to require law enforcement to notify dealers when pistol transfers are approved. This change in law would support best practice and relieve ambiguity in cases of silent or default approvals. In the long-term, policy makers should consider a centralized firearms background check system where firearms dealers contact one state agency which has access to all necessary records to perform a state background check. Dealers could remain responsible for conducting a federal NICS check, or that could become a state responsibility. This change would lead to greater efficiency, but would require significant statutory changes and fiscal appropriation to improve information systems. D. Law Enforcement Needs Better Access to Mental Health Records. A recurring theme by individuals representing law enforcement and prosecutors is the need for greater access to mental health records by law enforcement officers on the street. This issue centers on officer safety and public safety. In the 2005 legislative session, confidentiality provisions in the civil commitment statutes were amended to grant law enforcement an express right of access to mental health information for purposes of enforcing the state law restrictions White Paper on Firearms and Mental Health 17